K. Kenneth Penyu and Others vs State of Nagaland and Others

H.K. Sema, J.—This writ petition is preferred by the 3 Petitioners impugning the selection of candidates for MBBS, BDS and B.V. Sc. on 2.7.91 by the Board, called Common Selection Board, Nagaland for the session 1991 1992, selecting the candidates on tribal and backward tribe consideration, on the ground that it violates Article 14, 15 and 16 of the Constitution of India.

All the Petitioners appeared in P.U. (Sc) examination in 1991 under North Eastern Hill University (hereinafter referred to as NEHU) and secured 2nd division with the subjects, Physics, Chemistry and Biology. The Petitioner No. 1 obtained 54.3% of the total marks of the subjects, Physics, Chemistry and Biology. The Petitioner No. 2 obtained 51.5% and the Petitioner No. 3 obtained 56% of the total marks. It is stated that the Petitioners having secured much higher marks above the requisite percentage of marks eligible for admission to Medical Course and other technical course they are within the zone of consideration for selection to Medical and other technical course on merit basis. Situated as such, they have applied for undergoing various technical courses to the department of the Directorate of Higher Education in prescribed form. The Petitioners gave MBBS as the first preference. However, the 2nd and 3rd Petitioners gave also 2nd preference to BDS.

That there is a Board at Nagaland known as Common Selection Board constituted since 1979 (Sic) for conducting selection of candidate to various technical courses outside the State of Nagaland on the basis of the criteria laid down therein. For the sake of convenience the criteria in so far relevant for the purpose of disposal of this writ petition is extracted as under;

(a) Selection will be on merit determined from the marks obtained in concerned subjects.

(b) Candidates from Educationally backward areas may be considered even out of merit provided they possess the minimum marks eligible for admission.

(d) The local candidates will be considered first for selection. If scat are still available after selecting all eligible local candidates, preference will be given in the following order-indigenous inhabitants, children of the State Government Employees, Army, CRP, GREF etc.

It is admitted by learned Addl. Advocate General, appearing for the State that there is no other method prescribed for selection to various technical courses other than one prescribed in 1979.

The main grievances of the Petitioners in this writ petition are that the Common Selection Board adopted a peculiar and alien method deviating from the criteria laid down for the purpose in 1979, in selecting the candidates for various technical courses for the session 1991-1992. These are; that out of total 22 MBBS seats, 10 seats for BDS, and 27 seats for B.V. Sc. allocated to Nagaland, 12 MBBS seats were allocated to candidates who are selected purely on merit basis for which the Petitioners have no grievance. But so far with regard to remaining 10 seats of MBBS, 5 seats were allocated to those candidates who are selected on tribe wise consideration and the Respondents 4 to 8 were selected on backward tribe consideration and the Respondent 9 to 13 have been selected on the basis of backward tribe consideration. Out of 10 seats for BDS, so far 5 seats have been allocated, and out of the 5 seats, 3 candidates were selected purely on merit basis for which the Petitioners have no grievances, But the remaining 2 seats were allocated on backward tribe consideration and the Respondents No. 14 and 15 were selected. Out of 27 seats for B.V. Sc. 17 seats have already been allocated, out of which 10 scats have been allocated to candidates selected purely on merit basis but 3 seats have been allocated to candidates on tribe wise consideration, And 4 seats were allocated to the candidates selected on backward tribe consideration. Respondents No. 16 to 18 were selected for B.V. Sc course on tribal consideration and Respondents No. 19 to 22 were selected for B.V. Sc. course on backward tribe consideration. It is stated that one Rongmei Respondent No. 7 selected for Medical course on tribal consideration is not a tribal. So also one Kuki Shri Laimingthan Doungel Respondent No. 19 selected for B.V. Sc. course on backward tribe consideration has not been declared as backward tribe by any competent authority.

In this writ petition, the Petitioners seeking a direction from this Court for quashing the selection of candidates selected other than on merit. In other words, for quashing of selection c-f candidates on the basis of tribal consideration and backward consideration on the ground that the same deviates not only from the criteria laid down by the competent authority in 1979 but also violates the provisions of Articles 14, 15 and 15(4).

Article 15(1) states that the State shall not discriminate against any citizen on grounds only of religion race, caste, sex, place of birth or any of them.

Article 29(2) states that no citizen shall be denied admission into any educational Institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

Article 16(4) states that nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

Originally, there was no clause (4) in Article 15 in the Constitution. Article 15(4) was added by the Constitution first Amendment Act, 1951. The object of the amendment was to bring Articles 15 and 29 in link with Article 15(4).

Article 15(4) for which we are primarily concerned for the purpose of the disposal of this writ petition runs as under.

15(4). Nothing in this Article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

Article 15(4) thus speaks of specially (Sic, socially) and educationally backward classes of citizen. Backwardness under Article 15(4) must therefore, be social and educational. It is not either social or educational, but it is both social and educational. Therefore, in order to bring a group of citizen within the purview of Article 15(4) the question as to how they are socially and educationally backward has to be determined.

Mr. D.K. Mishra, learned Addl. Advocate General appearing on behalf of the State submits that the Board has considered, besides the merits, of the candidates on tribal consideration and on the basis of backwardness to give equal representation to all the tribes, otherwise out of 22 MBBS seats allocated to the State, 14 seats would go to only one tribe if the merit is the only consideration. This submission of the learned Addl. Advocate General appears to the sound but such policy of the State must have the backing of the law and the Constitution. In this connection Mr. Mishra has produced the notification dated 11. 1.1977 issued by the Governor of Nagaland in exercise of his power conferred by Article 16(4) of the Constitution for reservation of non-technical and non-gazetted posts under the Government of Nagaland for educationally and economically backward classes and fairly suggested that the similar notification may be doneby the competent authority under Article 15(4).

With regard to quashing of selection of candidates based on tribal and backward consideration, Mr. Mishra has fairly submits that the said selection were not done under the relevant notification and Guide lines. He however, submits that the candidates were selected as far back as on 2.7.91 for the Session, 1991-1992 and they are seriously prosecuting their studies and if, at this stage, the selection is quashed it will cause not only immense hardship but also Jeopardise the entire education career of the selected candidates. He therefore, submits that this is a fit case where the interest of justice, equity, coupled with mercy has a greater role to play.

Article 15(4) authorised the State for making a special provision for the advancement of any socially and educationally backward classes of citizen. There-fore, the State Government by its executive order is empowered to make the special provision for the advancement of any socially and educationally backward classes of citizen or for me Scheduled Caste and Scheduled Tribes.

The question now arises as to how to determine the socially and educa-tionally backward classes of citizen. It has been held in State of Uttar Pradesh and Others Vs. Pradip Tandon and Others, by their Lordships in paragraph 15 of the judgment:

Broadly stated, neither castes or race nor religion can be made the basis of classification. For the purposes of determining social and educational backward-ness within the meaning of Article 15(4),

In M.R. Balaji and Others Vs. State of Mysore, their Lordships held that the expression socially and educationally backward classes in Article 15(4) to be comparable to Scheduled Caste and Scheduled Tribes for the reason that the Scheduled Caste and Scheduled Tribes illustrated social and educational backwardness.

The expression socially and educationally backward classes of citizen has not been defined in the Constitution, It is however observed, in State of U.P. (Supra) that the traditional unchanging occupation of citizen may contribute to social and educational backwardness. The place of habitation and its environment is also a determining factor in judging the social and educational backwardness. It is further observed that the expression-Classes of Citizen indicates homogeneous section of the people who are grouped together because of certain likenesses and common traits and who are identifiable by some common attributes. The homogeneity of the class of citizens is social and educational backwardness. Neither the caste nor the religion nor place of birth will be the uniform element of common attributes to make them a class of citizen.

It is further observed in paragraph 18 of the judgment which runs as follows:

The traits of social backwardness are these. There is no social structure. There is no social hierarcy. There are no means of controlling the environment through technology. There is no organisation of the society to create inducement for uplift of the people and improvement of economy. Building of towns and industries, growths of cash economy which are responsible for greater wealth are absent among such classes. Social growth and well being can be satisfied by massive change in resource conditions. High lands and hills are to be developed in fiscal values and natural resources. Nature is a treasury. Forest, mountains, rivers can yield and advanced society with the aid of education and technology.

Determining the socially and educationally backward areas of Nagaland may be an uphill task, because the composition of the State itself is composed of mostly by classes of citizen who are socially and educationally backward. However, the competent authority may consider the following factors for determining socially and educationally backwardness for the purpose of Article 15(4).

(a) Backwardness is judged by economic basis that each region has its own measurable possibilities for the maintenance of human numbers, standards of living and fixed property;

(b) From an economic point of view the classes of citizens are backward when they do not make effective use of resources;

(c) When large areas of land maintain a sparse, disorderly and illiterate population whose properly is small and negligible the element of social backward-ness is observed;

(d) When effective territorial specialisation is not possible in the absence of means of communication and technical processes in the area; and the bulk of the population of the area are socially backward classes of citizens and

(e) Neglected opportunities and people in remote places raise walls of social backwardness of people.

These are the factors and any other factors that may be considered reasonably by the competent authority for determining the socially and education-ally backwardness for the purpose of issuing Notification under Article 15(4) of the Constitution.

In view of the aforesaid discussions and reasons the selection of candidates basing on the tribal and backward consideration are not in accordance with the Guidelines and Constitution of India and the same is violative of Articles 14 and 15(4) and they are accordingly quashed. However, considering the facts that the selected candidates were selected for the session 1991-1992 and they are prosecuting their studies seriously, I am of the view that their study career should not be disturbed at this stage. They are allowed to continue and to complete the courses for which they are selected. It is, however, desirable that in view of the aforesaid reasons and findings the competent authority is advised to issue suitable notification in terms of directions and observations made above.

The petition is allowed. No costs.